YU HIU KIT KATHY v. LSG LUFTHANSA SERVICE HONG KONG LTD

HCPI 920/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 920 OF 2013

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JUDGMENT
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CASE SUMMARY

1.  This is an assessment of damages payable by the defendant to the plaintiff.  In this judgment page numbers in bracket are page numbers of the hearing bundles.

2.  This is a personal injury claim arising out of an incident occurred on 16 March 2009 (the “Incident”).

3.  The plaintiff was employed by the defendant at the material times as a kitchen worker in the defendant’s Production Department at the hourly rate of $27.00 plus a meal per day.

4.  The plaintiff sustained personal injuries on 16 March 2009 while on duty.

5.  In the Incident, the Plaintiff was hit on her back by a co‑worker pushing a trolley carrying boxes of frozen food.

6.  She was taken by ambulance to the Accident and Emergency Department of Princess Margaret Hospital (“PMH”) for treatment.

7.  The plaintiff commenced this Action on 24 February 2012 in the District Court under action number DCCJ 419/2012.

8.  Interlocutory Judgment was entered on 14 March 2013 at the District Court by consent against the defendant for the plaintiff’s claim with damages to be assessed.

9.  On 23 May 2013, the court gave directions for the parties to adduce expert evidence from orthopaedics experts, urological experts and psychiatric experts.  The parties’ experts in the field of orthopaedics were Dr Wong See Hoi for the plaintiff (“Dr Wong”) and Dr Lam Kwong Chin for the defendant (“Dr Lam”). The urological experts of the parties were Dr Lo Kwong Yin Richard for the plaintiff (“Dr Lo”) and Dr Koo Chia Gee George for the defendant (“Dr Koo”).  The psychiatric experts were Dr Kieran Singer for the plaintiff (“Dr Singer”) and Dr Chow Lok Yee for the defendant (“Dr Chow”).

10.  By an order dated 15 October 2013, the District Court transferred the proceedings in this Action to the High Court.

11.  On 18 February 2014, the court ordered that the joint reports of the parties’ experts were to be adduced in evidence without calling their makers.

12.  The plaintiff was legally represented in this Action until 31 March 2015 when her legal aid certificate was discharged.  She was not legally represented at the assessment of damages hearing.

13.  Only the plaintiff testified at the assessment of damages hearing.  The defendant did not call any factual witness.

THE PLAINTIFF’S CLAIM

14.  The plaintiff filed the Revised Statement of Damages on 27 May 2014 (the “RSOD”) when she was still legally represented.  In the RSOD the plaintiff claimed the following heads of damages against the defendant:

(1) pain, suffering and loss of amenities (“PSLA”) in the sum of $300,000.00;

(2) loss of pre-trial earnings and mandatory provident fund (“MPF”) in the sum of $580,185.90;

(3) loss of future earnings and MPF in the sum of $326,088.00;

(4) loss of congenial employment in the sum of $100,000.00;

(5) loss of earning capacity in the sum of $71,040.00;

(6) costs of future medical expenses in the sum of $103,500.00; and

(7) special damages for:

(a) medical expenses in the sum of $12,000.00;

(b) costs of catheters in the sum of $63,000.00

(c) travelling expenses in the sum of $4,000.00;

(d) costs of tonic food, vitamin and hot blanket in the sum of $42,330.00.

THE PLAINTIFF’S MEDICAL TREATMENTS

15.  When the plaintiff was taken to PMH on 16 March 2009, she was found to have sustained a back contusion injury with tenderness over the right side of her body.  X‑rays revealed no fracture.  She was admitted to the Orthopaedics Department of PMH for further management.  She was hospitalized at PMH from 16 to 19 March 2009 for 4 days.

16.  The plaintiff attended follow-ups at the Orthopaedics Department of PMH.  She also received treatments from the Occupational Therapy Department and Physiotherapy Department of PMH from 17 March 2009 to about end of February 2010.  Treatments given by the Physiotherapy Department of PMH to the plaintiff included Transcutaneous Electrical Nerve Stimulation, Hot Pad, Intermittent Pelvis Traction, Interferential Therapy, back mobilization and walking exercises. (p 292)  Occupational Therapy, Work Capacity Evaluation and work rehabilitation were provided to the plaintiff by the Occupational Therapy Department of PMH. (p 293)   Improvements were recorded (pp 1066‑1069).  It became static by January 2010 (p 1065) and the treating doctor was of the view that the plaintiff had reached maximal medical improvement by 17 March 2010 (p 1062).

17.  The Occupational Therapist found in all Work Capacity Evaluations carried out on the plaintiff from October 2009 to February 2010 that there were “Inconsistent results shown with submaximal effort” (pp 1103‑1113).

18.  When the plaintiff attended follow-up at the Orthopaedics Department of PMH on 24 April 2009, it was noted that her pain had improved a lot.  However, she complained of less urinary urgency feel recently but she could still pass urine in good stream.  The ultra-sound scan showed that her bladder still retained about 108 cc of urine after voiding 400 cc but the plaintiff still had no sense of urgency.  

19.  The plaintiff was hospitalized again from 25 to 29 April 2009 for 5 days and referred to follow‑up by the Urology Department.  She claimed that she did not have sense of urgency to void since discharge from PMH (ie 19 March 2009) but did not have incontinence.  She was able to void. She walked steadily unaided with no numbness during her stay at PMH.  Her back pain had reduced although she still complained of having tolerable mild back pain (pp 1002‑1010). 

20.  PMH conducted video urodynamic study on the plaintiff on 25 June 2009 which showed normal bladder.  The plaintiff was found to have normal sensation and normal compliance during filling phase with no leakage.  She had unobstructed flow in normogram and complete emptying at the voiding phase.

21.  On 10 July 2009, the plaintiff attended follow‑up at the Urology Department of PMH.  She developed retention of urine during stay at observation room but successfully voiding.  There was no need for catheterization.  Her stream was normal.  She had no urgency sensation but without incontinence.  She had increased sense of incomplete emptying.  The treating doctor recommended another follow‑up but remarked: “Close case if normal”. (p 1042) 

22.  The plaintiff attended follow‑ups on 2 October 2009 and 23 February 2010 at the Urology Department.  She was taught to perform self-intermittent catheterization (“SIC”) by herself on 23 February 2010 (p 1037).  On 1 March 2010, the plaintiff was suggested to conduct SIC twice a day (p 1038).  By 17 March 2010, it was increased to three times per day (p 1062). 

23.  The plaintiff had progressive decrease sensation of urgency and difficult self‑void.  On 25 March 2010, PMH conducted another video urodynamic study on the plaintiff which showed atonic bladder and acontractile bladder.  The plaintiff was found to have poor sensation of urgency and failed initiation of self‑void.  The plaintiff was suggested to continue with SIC six times a day. (pp 977-978)  By 14 May 2010, SIC was increased to eight times a day (p 1035).

24.  On 13 October 2010, at a telephone contact by PMH the plaintiff reported having SIC four times a day.  The plaintiff complained that she had depressive mood and cried.  She also complained of generalized pain and epigastric pain.  (p 1033)

25.  At the follow-up on 4 January 2011, the plaintiff reported poor morale for poor prognosis.  She had SIC six to seven times a day but refused SIC when going out.  She was encouraged to try SIC when going out but she refused to learn (p 1032).  At the follow-up on 29 April 2011, the plaintiff said that she was still on SIC six times a day (p 1029). 

26.  The plaintiff reported depression to the Occupational Therapist of PMH on 12 February 2010 (PP 1112‑1113) and was referred to Castle Peak Hospital (“CPH”) for treatment.

27.  She was first seen at CPH on 12 April 2010 and was diagnosed as suffering from depression. Medication was prescribed and she was referred to Clinical Psychologist of CPH.  She received treatment at both individual sessions and group sessions.

28.  In a report dated 14 July 2010 issued by CPH (pp 278‑279), CPH summarized the conditions of the plaintiff as follows:

“3. ... She (the plaintiff) had back injury while on duty on 16 March 2009 when she was hit by a vehicle with goods on her back from shoulder to leg, got dizzy, vomiting and dizziness of lower limb, and was sent to PMH being unable to move and unable to urinate. She was hospitalized in Orthopaedics Department and referred to Urology unit. She had backache and frequent dizziness and was unable to sit and squat. She had severe low back pain with follow-up at Orthopaedics unit. She could walk for about 30 minutes and complained of loss of urinary urgency after injury. According to investigation by the Surgical Department in March 2010, she had atonic bladder and acontractile bladder with no initiation of self-void. She required self-intermittent catheterization (6 times per day) for her urinary problems, which she felt painful. She felt unhappy and cried, and worried about finance and being unable to return to work. She felt frustrated as being followed by insurance company which also asked her for medical assessment, and was frustrated that the assessing doctors were not treating her illness. She had insomnia, cut her hair short, and felt useless and anxious about future. She felt ashamed about her urinary problem and medical assessment. She ate a lot for ventilation and vomited.

4. She was diagnosed as suffering from Depression. She was put on fluoxetine 20mg daily and referred to our clinical psychologist.  On further psychiatric follow-up her mood was similar as she felt stressful about self-catheterization and going to hospital, felt useless and worried about her urological problem and future with fleeting suicidal idea.  She cooked and ate a lot with self-induced vomiting.  She was socially withdrawn.  Her fluoxetine dosage was stepped up gradually to 40mg nocte.  She last attended psychiatric follow-up at our clinic on 13 July 2010.  She had nightmares and flashback of her incident.  She was still upset about her backache and urological problem, and distressed with self-intermittent catheterization especially around menstruation.” 

29.  On 8 September 2010, the plaintiff’s progress was reviewed with the following findings (pp 280‑282):

“7. ... She was still depressed and lost of interest in any activities. She had diminished appetite and poor sleep. She had difficulty concentrating, sense of worthlessness, fatigue and irritability. She had suicidal ideation, but no concrete suicidal plan. She thought the injury on duty was a trauma. She had nightmare every night. Most of the nightmares were related to her screaming and looking back to check what happened. She had flashback nearly every day. She was socially withdrawn and pessimistic about her future. She was hypervigilant and easy to have startle response. The problems of back pain and atonic bladder were more or less the same. She did not improve much after receiving pharmacological and psychological treatment.”

30.  Medical reports issued by CPH on 23 February 2011, 14 March 2011 and 18 April 2012 did not report significant changes in the plaintiff’s conditions (pp 283‑286 and 290‑291).

31.  When the plaintiff attended follow‑ups at CPH from 15 June 2010 to 23 December 2011 she walked in aid of a stick.  She first complained about having nightmare on 15 June 2010 (p 934) and first complained about having flashback of the Incident on 13 July 2010 (p 933).

32.  Her mood was observed as “low” in follow-ups from 10 May 2010 to 10 August 2010 (PP 932‑936) but the treating doctors recorded that the plaintiff was “calm when seen” at follow‑ups from 14 September 2010 to 18 January 2011 (pp 927‑931).  Although her mood was found to be “lowish” at the follow-up on 22 February 2011 (p 926), she returned to “mood calm” at follow‑ups from 8 April 2011 to 31 May 2011 (pp 923‑925).  Her mood turned “depressed” or “low” again from the follow‑up on 28 March 2012 to the follow‑up on 29 May 2012 (pp 916‑918).  She was noted to be “calm when seen” at the follow-ups on 11 December 2012 and 22 January 2013 (pp 912‑913).  The treating doctors noted that the plaintiff was wearing sunglasses when she attended the follow‑ups on 24 April, 10 August and 28 September 2012 (pp 914, 915 and 917).  She was provided with counselling and medication by CPH.

33.  At the follow‑ups on 22 January and 15 March 2013, the treating doctors found that the plaintiff was “not depressed” (pp 911‑912).

34.  A total of 1,109 days sick leave was granted by various treating doctors to the plaintiff from 16 March 2009 to 17 March 2010, from 19 March 2010 to 4 January 2011, from 7 January 2011 to 9 December 2011 and from 26 June to 16 October 2012.

THE PLAINTIFF’S CASE AND EVIDENCE

35.  The plaintiff’s case is that in consequence of the Incident she suffered severe back problem.  She further developed urinary and psychiatric problems.  These problems persisted to the assessment hearing and she was unable to return to work even as at the date of the assessment hearing.

36.  The plaintiff was born in 1962.  She was 46 years old at the date of Incident and was 53 years old at the date of assessment hearing.  She had obtained a university degree in journalism in Beijing and worked as a news reporter before she came to Hong Kong in 1989. She had worked as an aerobic teacher in Hong Kong for a few years.  She had also operated several businesses in Hong Kong without much success.  She was not working from 1998 to 2007.  She started working for the defendant in July 2007.

37.  In the RSOD the plaintiff pleaded that she sustained back injury in the Incident which led to her subsequent urinary and psychiatric problems.  She had to receive treatments at PMH, CPH and Tuen Mun Mental Health Centre (“TTMHC”).  When the RSOD was filed on 27 May 2014, the plaintiff still had to attend regular follow-up treatments at the Urological Department and the Department of Psychiatry at PMH.

38.  The plaintiff pleaded that up to the date of the RSOD she still had various complaints on her physical and mental conditions. She pleaded that her daily activities had been adversely affected by the injuries.  She had avoided going out and had become confined to home most of the time.  Her sex life had been adversely affected and her relationship with her boyfriend had deteriorated.  Her boyfriend eventually left her in about February 2012.

39.  The plaintiff pleaded that given the nature of mental and physical injuries and the residual disabilities suffered by her in the Incident, she was unable to perform the job duties of her pre-Incident job and could not resume such job in full capacity.  She pleaded that she enjoyed very much her job as a kitchen worker but was no longer able to work in kitchen.  Due to her residual physical, urological and psychiatric disabilities caused by the Incident, coupled with her age and lack of other trade skills, she had suffered disadvantage in the labour market.

40.  The plaintiff pleaded that she was still very depressed and she was prepared to receive the intensive psychiatric treatment in private sector as recommended by Dr Singer which comprised of 25 sessions of treatment every fortnight with medication.

41.  In her Answers to Interrogatories by way of affirmation which was also filed on 27 May 2014, the plaintiff deposed that before the Incident she had a lot of interests including aerobic dancing, hiking, swimming, hanging out with friends, going movies and shopping, cooking and travelling.  Because of the injuries sustained in the Incident, she had stopped aerobic dancing and swimming although in the year before that affirmation she had resumed hiking for about once a month in average.  After the Incident, she seldom hung out, went movies or shopping with friends.  In the year prior to her affirmation, she would go out to buy foods and daily necessities near her home two to three times a week but she lost interest in cooking.

42.  She stated that she had fallen many times after the Incident and at least three times in the year before she affirmed her aforesaid affirmation.  She said that she was invited by her friends to travel to Taiwan for 4 days in October 2013 and to Japan for 5 days in April 2014 to change her mood (散心).  She also had a day trip to Shenzhen in May 2014 to visit friends.

43.  In a further affirmation filed on 11 November 2014, the plaintiff supplemented that she had also visited her mother in Harbin in March 2013.

44.  The Plaintiff testified at the assessment hearing and called no other factual witness.  She signed a witness statement dated 27 April 2014 and a supplemental witness statement dated 30 August 2014.  Her supplemental witness statement only dealt with various transactions in her bank account previously queried by the defendant.  None of those transactions were further raised by the defendant at the assessment of damages hearing.  Only evidence contained in the plaintiff’s witness statement was in issue at the hearing before me.  

45.  In her witness statement the plaintiff stated that because of the Incident, up to the time when she signed her witness statement she still suffered from back pain, urological problem and depression.

46.  She stated that when she stayed in PMH from 16 to 19 March 2009, she already had urological problem.  The doctor was about to refer her to the Urological Department on 19 March 2009.  The referral was cancelled because she was able to void a small quantity of urine on 19 March 2009.

47.  After she was discharged from PMH and returned home, she found that she did not have urinary urgency sensation.  Despite drinking a lot of water and going to toilet regularly, she could still void small quantity of urine each time.

48.  She reported her urological problem to the doctor at the follow‑up at PMH on 24 April 2009. Examination found that she had accumulated 508 cc of urine in her bladder but without urinary urgency sensation.  She was hospitalized from 25 to 29 April 2009.  Since then she had to attend regular follow-ups at the Urological Department of PMH.

49.  In March 2010, the doctor suggested her to perform SIC.  The plaintiff stated in her witness statement that at that time she had to use seven catheters each day.  She said that her urological problem led to her losing interest and motivation to go out.  She became depressed.

50.  The plaintiff stated in her witness statement that because of her back pain and urological problem, she was getting further depressed.  She was referred to CPH on 12 April 2010 for psychiatric treatment and later to TTMHC for psychological treatment and follow‑up.

51.  In her witness statement, the plaintiff complained that she still had lower back pain, lack of strength in both legs, lack of urinary urgency sensation and depression.  She said that since 2013, she had trained herself to void urine without using catheters.

52.  The plaintiff stated that after receiving psychiatric treatment for more than four years, her depression did not have much improvement.

53.  The plaintiff said that her boyfriend left her in February 2012 after a relationship of more than 18 years.

54.  The plaintiff recalled that she had another work injury to her back in May 2008 (the “2008 Event”).  She said that she had fully recovered from that minor injury after treatment and 4 days sick leave.  Her injury in 2008 was totally different from the injuries sustained by her in the Incident.

55.  The plaintiff testified at the assessment hearing.  She confirmed at the hearing that the content of her aforesaid witness statement was true and correct.  She adopted her witness statement as her evidence.

56.  The plaintiff agreed in cross‑examination that she remained on feet and did not fall after being hit by the trolley in the Incident.

57.  The plaintiff said that she still had back pain, numbness in legs and lower back as at the date of the assessment hearing.  She would still fall suddenly although not as frequent as before.

58.  She agreed that she had not told the treating doctors on 27 March and 9 April 2009 about her urinary problem when she attended follow‑ups at PMH but explained that this was because she had forgotten to tell.  She maintained that her urinary problem started after the Incident and that it was caused by the Incident.  She said that she had complained about her urinary problem to the doctor when she was hospitalized in PMH from 16 to 19 March 2009.

59.  Under cross‑examination the plaintiff agreed that she had stopped SIC in 2010.  She was unable to recall the exact time in 2010 when she stopped SIC.  However, when the plaintiff attended follow-up at the Urology Department of PMH on 29 April 2011, she told the treating doctor that she was still on SIC six times a day.  In the RSOD, the plaintiff claimed costs for catheters up to December 2012.

60.  The plaintiff said that she started to have nightmares and flashbacks one month after the Incident.  She did not tell the treating doctors before June 2010 because they did not ask.  She said that she still had nightmares as at the date of the assessment hearing.

61.  The plaintiff agreed that she had been running on hills for 20 years since she came to Hong Kong in 1989.  She agreed in cross‑examination that running was her favourite hobby but she did not remember why such hobby was not stated in her witness statement. She did not tell the experts of this hobby because she did not know that she had to tell them.

62.  She denied that she resumed running on hills in 2010 after the Incident.  She said that she only started hiking again in 2011 and resumed running at the end of 2012.  She hiked once a week in 2011 and 2012 which was increased to four times (including running) a week in 2014.  She hiked almost every day except Sunday in 2015.     

63.  The plaintiff said that she first participated in the 100 km “Oxfam Trailwalker” in 2011 and she did that every year thereafter.  Although she maintained that the “Oxfam Trailwalker” races were not difficult races, she agreed that a lot of training was required to prepare for the races.  She trained for at least 3 hours each day mainly in hiking to prepare for the 2015 “Oxfam Trailwalker” which she had completed in less than 18 hours just about 10 days before the assessment hearing.

DISCUSSION ON THE PLAINTIFF’S CSE AND FACTUAL EVIDENCE

64.  Mr Ramanathan SC representing the defendant put the plaintiff’s credibility in issue.

65.  The defendant’s solicitors had managed to obtain information from the plaintiff’s Facebook showing that the plaintiff had been running regularly in various distance races since October 2011.  The plaintiff admitted under cross-examination that she had participated in these races.

66.  The following races were found out by the defendant’s solicitors which the plaintiff had participated and admitted by the plaintiff in cross‑examination:

Date	Event		Distance		Plaintiff’s Result
26/10/2011	6th Care Action Cup (Macau)		16 km		7th in her group
20/11/2011	Oxfam Trailwalker 2011		100 km		35th overall
11/12/2011	10th Care Action Cup (Hong Kong)		30 km		26th in women team
25/03/2012	HKDRC‑Sketchers 36th Mount Bulter (Heritage) Race		15 km		1st in women team
13-14/10/2012	13th Raleigh Challenge- Wilson Trail		78 km		2nd in women team
28/10/2012	7th Care Action Cup (Macau)		16 km		10th in her group
17-18/11/2012	Oxfam Trailwalker 2012		100 km		44th overall
24/03/2013	HKDRC‑ASICS 37th Mount Bulter (Heritage) Race		15 km		2nd in women team
05/10/2013	He Huan Hill Cross Country Marathon (Taiwan)		43 km		4th in women group
14/10/2013	Reecho TT Round the Hill Cross-Country Rally				Champion
19/10/2013	XTE Midnight Express Race		45 km		1st in women section
27/10/2013	MSIG HK 50 Trail Run and Hike Race		50 km		5th overall
16-17/11/2013	Oxfam Trailwalker 2013		100 km
01/12/2013	Galaxy GEG International Marathon (Macau)		42.19 km		6th in women section and 32nd overall
08/12/2013	12th Care Action Cup		30 km		7th in female advanced group
14-15/12/2013	2013 The North Face 100		100 km		12th in women section
18/01/2014	Vibram HK 100 Ultra‑Trail World Tour		100 km		16th in women runner and 208th out of 1159 runners
14-16/03/2014	Trans Lantau 3rd Edition		100 km		3rd in senior women and 89 overall
23/03/2014	HKRDC 38th Mount Bulter (Heritage) Race		15 km		9th in women section
25-27/04/2014	Ultra Trail Mt Fuji (Japan)		168 km		Not finished, ran for over 34 hours
10-14/09/2014	Tour Des Geants (Italy)		330 km		Not finished, ran for over 120 hours
14-15/11/2014	Oxfam Trailwalker 2014		100 km
17/10/2015	Convey Totem Run
20-22/11/2015	Oxfam Trailwalker 2015		100 km		15th in mixed team and 56 overall

67.  When the plaintiff was discharged from PMH on 29 April 2009, she could walk unaided (p 994). During her stay at PMH from 25 to 29 April 2099, she was observed walking unaided with steady gait.  The medical notes recorded that she had no more back pain on 27 April 2009 (p 1006) and minimal pain on 28 April 2009 (p 1007).

68.  When the plaintiff attended the follow‑up at the Orthopaedics Department of PMH on 3 June 2009, she told the treating doctor that she could walk unaided for more than one hour. She complained of mild tenderness over left lower back and she was found to have no lower limb neurological deficit. (p 1069)  At the follow-up on 31 August 2009, the plaintiff was found to have no lower limb numbness or weakness and with no sphincter disturbance (p 1067).

69.  However, on 14 October 2009, the plaintiff walked with an umbrella to attend the follow‑up at the Orthopaedics Department of PMH.  No lower limb numbness or weakness, sphincter disturbance, or focal lower limb neurological deficit was detected. Only mild tenderness over left spine was observed. (p 1066)

70.  She was walking unaided on 25 November 2009 (p 1064) but with stick again on 8 July 2010 (p 1061) when she attended follow-ups at the Orthopaedics Department of PMH.

71.  According to the medical notes of CPH, the plaintiff walked by herself when she first attended CPH on 12 April 2010 (p 938) but she started to attend CPH follow-ups with walking stick since 15 June 2010 until 28 March 2012.  The plaintiff explained in cross‑examination that this was because she had fallen many times in 2009 and 2010.  She fell fewer times after 2010.

72.  The plaintiff said under cross‑examination that she could walk unaided in 2010, ie one year after the Incident.  Yet, the plaintiff attended follow‑ups at CPH in 2011 with walking stick.  At the follow‑up on 23 August 2011, the plaintiff told the doctor that she had fallen and was anxious about her physical condition.  She also told the doctor that she often stayed at home. (p 921)  However, in about two months’ time, she was competing in the 16 km “6^th CareAction Cup” on 26 October 2011 not in Hong Kong but in Macau.  She finished the race in less than 1 hour 40 minutes and came seventh in her group. (p 547)

73.  A week later, the plaintiff called CPH on 4 November 2011 saying that she had pain in both legs and was unable to attend follow-up on that day (p 921).  However, she was in the “Oxfam Trailwalker 2011” on 20 November 2011 when she joined the “Kong Fok Church Team 6” of Kong Fok Church (the “Church”) to compete in this challenging 100 km race.  Her team finished in less than 23 hours 58 minutes and ranked 35^th overall. (p 558)

74.  Three weeks later, the plaintiff competed in the 30 km “10^th CareAction Cup” in Hong Kong on 11 December 2011 and came 26^th in the women group. She finished the race in 4 hours and 8 minutes.  In the “10^th CareAction Cup” the plaintiff was not with her teammates from the Church but with another group called “Lok Wah” (樂華). (p 570)

75.  In less than two weeks’ time, when the plaintiff went to see the doctor at CPH on 23 December 2011, she walked with a stick and told the doctor that she was socially withdrawn and that she was anxious about her physical conditions (p 920).  This cannot be the same person who had achieved the aforesaid outstanding results in these challenging races with support from teammates in different teams.

76.  On 25 March 2012, the plaintiff won the 15 km “HKDRC‑Sketchers 36^thMount Bulter (Heritage) Race” when her team “Kong Fok Church (C)” finished first amongst the women team (p 592).  The plaintiff finished the race in less than 1 hour 25 minutes (p 578).  Yet, three days later, the plaintiff told the doctor at CPH on 28 March 2012 that she was anxious about her physical condition and distressed by the pain.  Her mood was depressed and irritable and she felt social withdrawal (p 918).

77.  The “HKDRC-­Sketchers 36^th Mount Bulter (Heritage) Race” was described by the organizer as “a demanding 15 km cross‑country race”.  The runners had to “run up Tai Tam Reservoir ... Then proceed downhill, cross the reservoir ... run uphill to Mount Parker Road.  Downhill and turn left ...” (p 571)  A runner who finished such a 15 km race in less than 1.5 hours is certainly a fit athlete in good (if not top) form and would not be someone anxious about her own physical condition. 

78.  On 24 July 2012, when the plaintiff attended examination by the orthopaedics experts, she told the experts that she was “not sporty”.  She complained about persistent pain from right upper back to buttock, worse with prolonged walking or standing; bilateral knee pain with easy giving way especially on stair walking; episodic numbness of right outer three toes, worse with prolonged standing. 

79.  On 28 September 2012, when the plaintiff attended the follow-up at CPH, she told the treating doctor that she had walking difficulty (see p 914).

80.  However, in two weeks’ time she was competing in the 78 km “13^th Raleigh Challenge‑Wilson Trail” on 13 and 14 October 2012 with her friends from the Church at “Kong Fok Church (T12)” (p 638).  Her team finished second in the “whole women” category in less than 17 hours 15 minutes (p 601).

81.  Another two weeks later, the plaintiff was in the 16 km “7^th CareAction Cup” in Macau on 28 October 2012.  This race included climbing up‑stair twice for totally about 600 steps and down-­stair for about 250 steps (p 645).  The plaintiff finished the race in less than 1 hour 44 minutes and ranked tenth in her group (p 648).

82.  Yet when the plaintiff was examined by the psychiatric experts two days later on 30 October 2012, the plaintiff complained to the experts about depressed mood, lack of energy, loss of interest or pleasure in activities, fatigue and feeling worthless.  She told the experts that she avoided social contact, felt socially isolated and just stayed at home.  She was not interested in going out and seldom went out.  She told the experts that she was also not interested of mixing with the Church people when she had just participated in the “13^th Raleigh Challenge‑Wilson Trail” as a member of the Church team less than three weeks ago on 13 to 14 October 2012.

83.  On 23 January 2013, when the plaintiff was examined by the urological experts, she told the experts that although she could walk, she had occasional falls with sudden weakness of the legs.  She also complained of right-sided pain and buttock pain which radiated to her toes.

84.  However, two months before the aforesaid examination, the plaintiff had just finished the 100 km “Oxfam Trailwalker 2012” on 17 to 18 November 2012 with the Church team (ie Kong Fok Church T4) in less than 18 hours (p 651).  Two months after the examination on 24 March 2013, the plaintiff with the Church team participated in the 15 km cross‑country “HKDRC‑ASICS 37^th Mount Bulter (Heritage) Race” and came second in the women team (p 672).

85.  The plaintiff filed her Statement of Damages on 13 September 2013 (the “SOD”) which was verified by a statement of truth dated 12 September 2013 signed by the plaintiff.  In the SOD, the plaintiff pleaded that she still had the following mental conditions: loss of energy and interest in activities, fatigue, confining herself at home and avoidance of social contact (see para 20 of the SOD).  The evidence adduced at the assessment hearing showed that the plaintiff in fact had a very tight schedule ahead in October 2013.  She was scheduled to compete in the “He Huan Hill Cross Country Marathon” in Taiwan on 5 October 2013 upon invitation of her friends.  After that she had to rush back to Hong Kong to compete in the “Reecho TT Round the Hill Cross‑Country Rally” on 14 October 2013, the “XTE Midnight Express Race” on 19 October 2013 and the “MSIG HK 50 Trial Run and Hike Race” on 27 October 2013.

86.  When the plaintiff signed the statement of truth on 12 September 2013 verifying her various complaints subsisting as at September 2013, the plaintiff had already had a lot of plans to enjoy her running hobby.

87.  After the busy month of October 2013, the plaintiff did not stop.  She was in the 100 km “Oxfam Trailwalker 2013” in November 2013.  She went to Macau to compete in the 42.19 km “Galaxy GEG International Marathon” on 1 December 2013 and again rushed back to Hong Kong to join the 30 km “12^th CareAction Cup” on 8 December 2013 and the 100 km “2013 The North Face 100” on 14 to 15 December 2013.

88.  The plaintiff started 2014 with the 100 km “Vibram HK 100 Ultra-Trail” held on 18 January 2014 and followed by the “Trans Lantau 3^rd Edition” which was another 100 km race on 14 to 16 March 2014.  She joined the 15 km “HKRDC 38^th Mount Bukter (Heritage) Race” held on 23 March 2014 before she ventured overseas to participate in the 168 km “Ultra Trail Mt Fuji” in Japan in April 2014 and the 330 km “Tour Des Geants” (the “TDG”) in Italy in September 2014.    

89.  In her affirmation filed on 27 May 2014 answering the Interrogatories raised by the defendant, the plaintiff gave her answer in respect of travel out of Hong Kong by saying that she went to Taiwan and Japan in October 2013 and April 2014 respectively upon invitations of her friends to help her changing her mood.  In fact, she was competing in the “He Huan Hill Cross Country Marathon” in Taiwan in October 2013 and competing in the “Ultra Trail Mt Fuji” in Japan in April 2014.  The plaintiff also did not mention in her aforesaid affirmation her three trips to Macau in October 2011 and 2012 to compete in the 6^th and 7^th Macau “CareAction Cup” and in December 2013 to compete in the “Galaxy GEG International Marathon” in Macau.

90.  The plaintiff joined the “Vibram HK 100 Ultra‑Trail World Tour” held on 18 January 2014.  The organizer described the event as “an ultra endurance race” and “a unique, challenging and beautiful run for the running enthusiast” with the course involves “a cumulative elevation gain of over 4500 meters” (p 753).  The official cut‑off time was 30 hours.  The plaintiff finished the race in less than 16 hours 19 minutes (p 754).  This occurred just three to four months before the plaintiff signed her witness statement on 17 April 2014 and the statement of truth on 27 May 2014 verifying the various complaints on her physical and mental conditions stated in her witness statement and the RSOC which were said to be subsisting as at April/May 2014.

91.  Just a week after the plaintiff signing her witness statement on 17 April 2014 stating how she suffered from the back pain, urinary and mental problems which led to her losing interest in surrounding things, she was in Japan for the “Ultra Trail Mt Fuji” from 25 to 27 April 2014.  The organizer of the “Ultra Trail Mt Fuji” put the participants on notice of the following conditions for that race (p 817):

“1. As a racer, you understand the unique nature and requirements of competing in an ultra-long distance trail running race. You will be running all day and night through mountainous terrain and have undertaken the necessary training to compete in such a race.”

“4. You are able to physically and mentally deal with extreme fatigue, stomach problems, muscle pain and mild physical injuries on your own.”

92.  The plaintiff did not finish the “Ultra Trail Mt Fuji”.  She gave up after running for more than 34 hours.  However, this did not stop her from joining the 330 km TDG held on 10 to 14 September 2014 in Italy.

93.  The organizer of the TDG had drawn the attention of the participants to the fact that: “In addition to being particularly long, the race includes several stretches at high altitude, including over 3000 metres, and the conditions can be very difficult (running in the dark, wind, cold, rain or snow).”  The participants had to be properly prepared both mentally and physically. (p 823)  To register for the TDG, the participants had to submit “a valid medical certificate declaring fitness for competitive sports” (p 826).  When cross‑examined on how she managed to get the required medical certificate of fitness when she was claiming in April 2014 that she was still unfit to resume work, the plaintiff’s answer was that she could not remember.

94.  The plaintiff also did not finish the TDG.  She gave up after running for more than 120 hours with 46 km remained to reach the finishing point.

95.  Despite the fact that the plaintiff did not finish the TDG, she agreed that she was enjoying the race when she was interviewed on 30 September 2014 in an inter-net radio interview (see paras 99‑100 below).  Two months after the TDG, the plaintiff was in the 100 km “Oxfam Trailwalker 2014” on 14 to 15 November 2014.

96.  Before the plaintiff attended the assessment hearing on 2 December 2015 complaining that she was still suffering from the residual back pain and her urinary as well as mental problems, the plaintiff had just finished the 100 km “Oxfam Trailwalker 2015” in less than 18 hours on 21 November 2015 with companions of her teammates from the Church.  Her team “Kong Fok Church Team 4” (p 910‑1) ranked 56 overall out of 1,279 teams (p 910‑2) and ranked 15 in the open mixed category (p 910‑22).

97.  The above is certainly not something a person with the persistent residual disabilities that the plaintiff asserted in her witness statement would be able to achieve.  When the falsity of her evidence was pointed out to the plaintiff, the plaintiff tried to shift the blame to her former solicitors.  She accused the solicitors of not explaining to her the court documents, her witness statements and the expert reports.  She said that she did not know the contents of the various court documents which she had signed.  I find this wholly incredible.

98.  The plaintiff’s witness statement was written in Chinese.  Her affirmations answering the Interrogatories were also written in Chinese.  Although the SOD and the RSOD were written in English, the plaintiff’s then solicitors had certified that they had interpreted the contents to the plaintiff who appeared to understand the documents and approved their contents as accurate.  The plaintiff had also signed the bilingual statements of truth to verify the SOD and the RSOD.  Mr Ramanathan rightly pointed out that the plaintiff had in para 25 of her witness statement referred to certain comments made by the orthopaedics experts.  It could not be true that the expert reports had not been explained to her.  The plaintiff then changed her evidence to say that the solicitor had afterward explained the expert reports to her over the phone.

99.  In an interview with “Sportstunes” (an inter-net radio programme) on 30 September 2014, the plaintiff said that she had been training on hills since 2010.  However, when she was cross‑examined, she denied that she had started running on hills since 2010 but said that she only started hiking in 2011.  She said that she misheard the year mentioned by the interviewer.

100.  The plaintiff told the interviewer in the aforesaid interview that she was very active and worked out regularly.  She said that one could profit from working out, get vitality and feel happy.  Working out also helped healing injuries.  She said that she participated in the TDG in Italy to challenge herself and see her strength.  Although she did not complete the TDG race, she had run for more than 120 hours and there remained only 46 km to the finish.  Her right leg became swollen and had sprained.  She told the interviewer that she could bear a lot of pain.  She also confirmed that she ran daily from Monday to Friday for over 15 km each day.  She said that she would have a longer training session of over 30 km on Saturday with her team from the Church which made her very happy.

101.  In these proceedings, the plaintiff maintained and projected a picture of someone whose life and daily living activities had been ruined by the Incident. She deliberately concealed her running passion and activities.  When she identified her interests and hobbies in the SOD and the RSOD, the plaintiff did not mention running cross‑country races and marathons.  She did not tell the experts in any of the medical examinations about her running or competing in marathons even when some of the races took place just within days of such examinations.

102.  The various experts did not know that the plaintiff had been running on hills since 2010 and participating in competitive races and marathons in Hong Kong, Macau, Taiwan, Japan and Italy.  Considering the aforesaid evidence in the context of various complaints made by the plaintiff to the treating doctors and the medical experts at the same period of time clearly showed that the plaintiff had been deliberately untruthful and deceitful to the treating doctors and the experts.  I agree with Mr Ramanathan that the plaintiff had deliberately concealed her running activities to her treating doctors and the experts.

103.  The defendant also produced various screen capture photos from the plaintiff’s Facebook (pp 1145‑1257).  The photos not only showed the plaintiff running in the aforesaid races by herself or with friends but also cycling.  They showed her gathering with friends and enjoying foods.  Mr Ramanathan made the following comments on those photos in his closing submissions to which I agree:

“55. Against the backdrop of the sick role projected by P to her treating doctors and therapists at PMH and to various medical experts who examined her and prepared their reports, P herself provides the evidence that not only contradicts that projection but in fact underlines the falsity of that scenario.

56. An examination of the photos extracted from P’s Facebook postings reveal a completely different picture of a hale and hearty, very fit and very happy woman in her late 40s or early 50s who has the stamina, endurance and ability to regularly run though, challenging and grueling marathons and endurance races.”

104.  The aforesaid evidence showed that latest by October 2011, if not earlier, the plaintiff was fit and strong enough to run a 16 km hiking and running race in Macau and came 7^th in her group.  She did that in less than 1 hour 40 minutes. (p 547)  This was the “6^th CareAction Cup” on 26 October 2011.  To achieve such result, the plaintiff would no doubt have been in full steam training some considerable time before October 2011.  The plaintiff was telling the truth when she confirmed to the interviewer at the aforesaid inter-net radio interview that she started running on hills in 2010.

105.  I find the plaintiff an incredible witness and agree that this is a case of malingering by the plaintiff.

EVIDENCE OF ORTHOPAEDICS EXPERTS

106.  Dr Lam and Dr Wong examined the Plaintiff on 24 July 2012, ie more than three years after the Incident, and prepared a joint report dated 6 August 2012.

107.  Despite the facts that she had the hobby of running cross‑country races and marathons and that she had recently competed in the “6^th CareAction Cup” in Macau on 26 October 2011, the “Oxfam Trailwalker 2011” on 20 November 2011, the “10^th CareAction Cup” on 11 December 2011 and the “HKDRC‑Sketchers 36^th Mount Bulter (Heritage) Race” on 25 March 2012 before she attended the medical examination and that she was going to participate in the 78 km “13^th Raleigh Challenge‑Wilson Trail” on 13 to 14 October 2012, the 16 km “7^th CareAction Cup” in Macau on 28 October 2012 and the 100 km “Oxfam Trailwalker 2012” on 17 to 18 November 2012, the plaintiff told the experts on 24 July 2012 that she was “not sporty”.

108.  The plaintiff also complained to the experts that she still suffered persistent pain from right upper back to buttock which would get worse after prolonged sitting or standing for about 30 minutes. Her knees would give way easily due to bilateral knee pain especially when she was walking stairs.  She said that she had fallen 20 times.  She also had episodic numbness of right outer three toes which would become worse after prolong standing for 10 minutes.  She also suffered episodic upper limb numbness from elbow to fingers at midnight two to three times a week.  She had no sense of urination urgency and had problem of incomplete emptying.  She had to use self‑intermittent catheterization six to seven times a day.  (The plaintiff’s evidence under cross-examination was that she had stopped SIC some time in 2010.)  She would loss emotional control and become tearful.  She also suffered insomnia.

109.  During examination of her back, the plaintiff complained of diffuse tenderness at midline and right paraspinal area from upper thoracic to upper sacrum, muscle tightness at right side but examination of lower limbs revealed no significant muscle wasting or spasticity.

110.  Both experts agreed that the plaintiff had a contusion to right back with soft tissue involvement.  There was no suggestion of more serious damage such as bony facture or neurological deficit.  Both experts agreed that the treatment given to the plaintiff was appropriate and that she had had satisfactory recovery.

111.  Dr Lam pointed out that the back injury suffered by the plaintiff would have resulted in only minor residual symptoms bearing in mind the trolley hitting the plaintiff would not have been impacted at high speed as the plaintiff was able to remain standing after the impact.  According to Dr Lam, persons with back contusion from a soft tissue injury would usually recover upon conservative treatment within a short time.  In normal course the symptoms would further and gradually diminish with time.  If the symptoms remained static despite treatment or even got worse, this would suggest the presence of other factors, such as psycho‑social factors.

112.  Dr Wong agreed that most patients with back soft tissue injury would attain a satisfactory recovery after conservative treatment for a few months.  However, some patients did not respond to treatment and might have persistent pain symptom.

113.  Taking into account the medical notes of PMH on the plaintiff recording “pain improving a lot” on 24 April 2009 (p 968) and “no more back pain” on 27 April 2009 (p 1006) and the fact that the plaintiff had been competing in the various cross-country races and marathons since October 2011, I do not accept that the plaintiff was in the exception category referred to by Dr Wong.

114.  Both experts agreed that the plaintiff’s upper and lower limb complaints did not have a physical basis.  The experts pointed out that the orthopaedics records of PMH on follow‑ups of the plaintiff noted that the plaintiff had no lower limb neurological deficit after sustaining injuries in the Incident.  The diffuse numbness and weakness of limbs complained of by the plaintiff did not correlate to the anatomical pattern in terms of motor or sensory loss in the corresponding myotome or dermatome. There was also no objective evidence such as muscle wasting or diminished reflexes supporting any claim for neurological deficit.  The records of PMH and the examination carried out by the experts on straight leg raising also showed that the plaintiff did not have actual nerve root tension.

115.  Dr Lam pointed out that the diffuseness, chronicity and intensity of the plaintiff’s back pain were disproportionate to the injury of the plaintiff sustained in the Incident.  He was of the view that the plaintiff’s back and limb complaints were rather vague and entirely subjective and there were minimal objective signs to support her claims.  Dr Wong also said that it was hard to explain the pain severity and intensity complained by the plaintiff and that her subjective complaint of severe back pain was likely psychologically induced.  Both experts agreed that no active orthopaedics pathology was identified.  If the experts had been told of the participations of the plaintiff in the various cross‑country races in the few months prior to the examination and the outstanding results achieved by her, they would not have to engage in this futile exercise of finding an explanation for the plaintiff’s complaint of severe back pain.  Such pain simply did not exist.

116.  Both doctors agreed that the plaintiff’s urinary problem was unlikely to be caused by the Incident with just a back injury.  Dr Lam explained that any neurological deficit due to back trauma should manifest almost immediately. Neuropathic voiding dysfunction due to back trauma was usually associated with severe somatic disability such as paraplegia or telraplegia, which did not apply to the plaintiff.  Dr Lam opined that having regard to the mode of injury occurred to the plaintiff (ie hit at the back with a hand pushed cart) it would be impossible for the plaintiff to have an isolated peripheral nerve injury supplying the bladder too.  The video urodynamic study carried out by PMH on 25 June 2009 showed a normal bladder of the plaintiff which thereby excluded a traumatic cause.

117.  Both experts agreed that the plaintiff could return to her pre‑Incident work.  Dr Lam was of the view that if there were any residual symptoms, their adverse effect, if any, would be very mild.  Dr Wong suggested that the plaintiff might have some reduced work efficiency and/or capacity.  Dr Wong was of the view that prolonged standing or squatting might be affected.

118.  With the plaintiff’s educational background and work experience, both experts were of the view that she should be able to undertake work with higher pay and involving less manual effort.

EVIDENCE OF UROLOGY EXPERTS

119.  The plaintiff was examined by the urological experts on 23 January 2013.  The urological experts prepared a joint report dated 22 May 2013.

120.  Physical examination of the plaintiff by the experts was found to be normal with the abdomen soft and without masses.  The bladder was also found normal and not distended.  Her dermatome testing revealed a complaint of decreased sensation on the right side from the level of the umbilicus down, whilst the left side was normal.

121.  Both experts agreed that the plaintiff had an element of a hypotonic bladder due to an unknown cause.  They were of the view that an injury to the back resulting in an isolated hypotonic bladder was most unusual.  There were no significant injuries to the spine, the associated lower limbs or bowel symptoms in the plaintiff to account for the bladder pathology claimed by the plaintiff.  They pointed out that the plaintiff’s complaint of loss of sensation in the lower part of the right side of her body was rather unusual, as it did not correspond to any dermatome of the spinal level.  They considered that in such case of “chronic” urinary retention without organic neurological pathology, psychologic etiology had to be considered.

122.  The plaintiff complained to the urological experts about occasional fall, buttock pain radiated to toes, right side pain, bladder pain and insomnia.  However, the experts observed that the plaintiff was wearing shoes with three inches heels and walked without assistance or walking aids when attending the examination.  If the experts were told that the plaintiff had just completed the 100 km “Oxfam Trailwalker 2012” two months ago in November 2012 in less than 18 hours, they would not have such puzzle as they would know that the aforesaid complaints made by the plaintiff to them were simply untrue.

123.  According to the medical notes kept by PMH, the plaintiff had passed 250 to 300 cc of urine on 17 March 2009 (p 957).  She was observed to have walked to the toilet at 4 pm on 19 March 2009 (p 959).  When the plaintiff attended follow‑ups at the Orthopaedics Department of PMH on 27 March 2009 and 9 April 2009, she did not complain about urinary problem (pp 966‑967).  The plaintiff complained about “less urgency feel recently” only on 24 April 2009 when she attended further follow‑up at the Orthopaedics Department of PMH.  Even on that occasion, the plaintiff said that she could pass urine in good stream. (p 968)

124.  The plaintiff said that she forgot to mention her urinary problem at the earlier follow‑ups.  This is incredible.  If the plaintiff had been troubled by the urinary problem since 16 March 2009, that means she had been suffering from bladder pain and abdomen distension for more than 11 days when she attended the follow‑up on 27 March 2009 and 19 days by 4 April 2009.  The plaintiff’s evidence was that she had raised her urinary problem with the treating doctor when she was hospitalized in PMH from 16 to 19 March 2009 and that she had bladder pain everyday from 19 to 27 March 2009 about seven to eight times a day.  It is unbelievable that in such case she would mention back pain, neck stiffness and numbness during those follow‑ups (pp 966‑967) but forget to mention her bladder pain and abdomen distension which she agreed in cross‑examination was quite uncomfortable and had intensity similar to that of her back pain.

125.  I find that the plaintiff’s urinary problem did not surface until after 4 April 2009 which was more than two weeks after the Incident.

126.  In a memorandum dated 12 April 2010 issued by the Department of Surgery of PMH, it was stated that the plaintiff’s bladder problem probably related to work injury (p 276).  The memorandum contained no details on the basis on which the signing doctor formed such view.  It only referred to the plaintiff “had history of decreased in urinary sensation after hurt by trolley on 16/03/2009”. This was based on complaint made by the plaintiff which was first recorded on medical notes of PMH dated 24 April 2009.  The memorandum also referred to “VCMG was done and revealed hypotonic bladder.” The VCMG referred to was the one done on 25 March 2010, ie more than one year after the Incident.

127.  After considering the joint report of the urological experts and the view of the orthopaedics experts as set out in para 116 above, I accept their view that the plaintiff’s urological problem was not related to the injuries sustained by the plaintiff in the Incident.  I note from the medical notes that the Urology Department of PMH was also of the view that the plaintiff’s urinary problem was not related to her injuries sustained in the Incident (p 1063).

EVIDENCE OF PSYCHIATRIC EXPERTS

128.  The plaintiff was examined by the psychiatric experts on 30 October 2012.  The psychiatric experts prepared a joint report dated 3 July 2013.

129.  The plaintiff complained about persistent pain and numbness of the back with an intensity of 8 out of 10 and persistent numbness from the right buttock to the toes.  She said that she was only able to walk or stand for 20 minutes and was unable to carry weights of more than 1.5 kg.  She was unable to do any heavy tasks.  Her urological symptoms required self‑catheterization six to seven times a day.  She also had frequent dizziness.

130.  On psychiatric aspects, the plaintiff complained of depressed mood with an intensity of 8 out of 10.  She also complained of lack of energy and loss of interest or pleasure in activities.  She complained about fatigue and impairment of sleep and concentration.  She talked about feeling worthless and socially isolated.  She claimed to have avoided social contact.  She had nightmares of the Incident once a week starting one month after the Incident.  She was hypervigilant, irritable and agitated.

131.  In fact, before the plaintiff attended the examination on 30 October 2012, she had just finished the 78 km “13^th Raleigh Challenge‑Wilson Trail” on 14 October 2012 and the 16 km “7^th CareAction Cup” in Macau on 28 October 2012 (ie two days before the examination).

132.  She was running as a member of the “Kong Fok Church (T12)” team in the “13^th Raleigh Challenge‑Wilson Trail” and finished second in the whole women category after running for more than 17 hours from 9:30 am on 13 October to 2:44 am on 14 October 2012 (pp 601 and 638).  Yet, she complained to the experts that she had loss of interest in activities, lack of energy, loss of pleasure in activities, fatigue, retardation, ideas of worthlessness, avoided socializing with friends, sense of detachment from people, cold to people and did not trust people.  She also told the experts that she went to church but did not mix with church people.

133.  She told the experts that she spent time at home walking around, seldom went out and had no interest in going out without mentioning that she just returned from Macau after running the “7^th CareAction Cup” two days ago on 28 October 2012.

134.  Dr Singer concluded that there was a core of genuine complaints of the plaintiff but also an element of exaggeration.  He concluded that the plaintiff suffered from mild to moderate Major Depressive Disorder.  He opined that the plaintiff had symptoms of but not amounting to a diagnosable Post‑Traumatic Stress Disorder (“PTSD”).

135.  If Dr Singer were told that prior to the plaintiff attending the examination she had not only run in the “13^th Raleigh Challenge‑Wilson Trail” and the Macau “7^th CareAction Cup”, but also the 16 km Macau “6^th CareAction Cup” on 26 October 2011, the 100 km “Oxfam Trailwalker 2011” on 20 November 2011, the 30 km Hong Kong “10^th CareAction Cup” on 11 December 2011 and the 15 km “HKDRC‑Sketchers 36^th Mount Bulter (Heritage) Race” on 25 March 2012 and that she was preparing to run for the 100 km “Oxfam Trailwalker 2012” on 17 November 2012, Dr Singer would certainly have to reconsider whether there was “a core of genuine complaints” when the plaintiff complained about her diminished interest and pleasure in activities, fatigue, loss of energy and feelings of worthlessness relying on which Dr Singer formed his aforesaid conclusion on the plaintiff’s psychiatric condition.  Dr Singer would further find that there was more than an element of exaggeration in the plaintiff’s case.

136.  The plaintiff claimed that she heard female voices on 2 to 3 occasions saying she was worthless, the first occurred in April 2012.  Dr Chow noted that this complaint had never been documented in the records of the treating doctors.

137.  The plaintiff told the experts that one month after the Incident she was crying always, with temper loss and not wishing to see or speak to people.  She said that she was concerned about her recovery prospects and ability to work.  She complained of nightmares and flashbacks of the Incident.  She claimed to have suicidal idea and even attempted to carry it out two to three times.

138.  Dr Chow observed that it was in February 2010 that the plaintiff first reported depressive symptoms to the Occupational Therapist at PMH and that she did not report flashbacks until July 2010 when she visited the psychiatric clinic for the sixth time.

139.  Dr Chow pointed out that although the plaintiff was understandably depressed when talked about her problems, there was no other observable sign of depression.  He found the plaintiff’s thought and speech process well organized.  She was able to recount in chronological sequence her urinary problem.  She maintained her concentration for the 2.5 hours duration of examination.

140.  Dr Chow noted that the plaintiff wore sunglasses when she attended psychiatric follow‑ups at CPH and wore three inches high heel shoes to attend examination by the urological experts in January 2013 when she was complaining about back pain from walking and standing.  Dr Chow was of the view that such attention to personal appearances was atypical and uncharacteristic of someone who was severely depressed as claimed by the plaintiff.

141.  Dr Chow pointed out that the medical records of CPH showed that after the initial consultation on 12 April 2010, the plaintiff’s depressed mood had improved significantly in subsequent consultations.  The CPH consultation notes for January and May 2011, December 2012, January and March 2013 noted that the plaintiff was “not depressed” or “not overtly depressed”.  Dr Chow opined that it was likely that the plaintiff’s depressive state in its worst stage occurred in the period from 10 May 2010 to 10 August 2010 when CPH’s medical notes recorded the plaintiff’s mood was “on low side and worried, tearful”.  Medical notes of CPH also recorded that the plaintiff’s mood was “a bit low” on 28 March, 24 April and 29 May 2012.

142.  Dr Chow did not agree that the plaintiff had suffered from Major Depressive Disorder and said that even if she had suffered from Major Depressive Disorder, it had been largely in remission as the last entrance of her depressed mood being “a bit low” was on 29 May 2012.

143.  Dr Chow was of the view that the plaintiff might have Adjustment Disorder and Mixed Anxiety and Depressed Mood in the period from April to August 2010 and from March to May 2012.  Dr Chow estimated that urinary symptoms and back injury contributed equally to the plaintiff’s Adjustment Disorder with Mixed Anxiety and Depressed Mood.

144.  Dr Chow ruled out the diagnosis of PTSD as the plaintiff did not report intense fear, helpless or horror in response to the Incident.  Although the plaintiff told the experts that she started to have flashbacks and nightmares one month after the Incident, Dr Chow noted from the medical notes of PMH that the plaintiff did not first report flashbacks until 13 July 2010, ie almost 16 months after the Incident, despite the fact that her first psychiatric consultation at PMH was on 12 April 2010.  Dr Chow opined that such delay of one year and three months was very unusual and atypical and there was no identifiable valid reason to explain the delay. 

145.  Dr Chow further pointed out that the urological experts’ opinion was that the plaintiff’s urinary problem was not caused by the Incident but was of an unknown etiology.  The onset of any psychiatric problems only surfaced in February 2010, which was at least 10 months after the urinary problem surfaced.  Dr Chow was of the view that from a causative perspective, if the urinary problem was not caused by the Incident, then the mental distress occurred secondary to the urinary problem was not attributable to the Incident.

146.  Dr Chow pointed out that there were many signs suggestive of exaggeration and malingering.  He set out the following matters in support of his observation:

(1) In all Work Capacity Evaluations conducted by the Occupational Therapy Department of PMH from November 2009 to February 2010, the Occupational Therapist remarked that: “Inconsistent results shown with submaximal effort” (pp 1103‑1114).

(2) Various complaints of the plaintiff were not supported by objective medical evidence or pathology.  Dr Chow referred to the medical report of Dr Lee Po Chin, Orthopaedic Surgeon, dated 20 January 2010 when Dr Lee wrote:

“Examination revealed diffuse tenderness from mid thoracic spine to lower sacrum. There was no muscle spasm. Trunk movements were moderately limited. The flip test was positive. There was grade 4 to grade 3 weakness of Right lower limbs but there was no unilateral muscle atrophy of right thigh and calf. There was non‑dermatomal impaired sensation. The simulation tests of axial vertex compression, passive pelvic rotation and arm elevation were positive.”

(3) The plaintiff’s unexplained delay in complaining onset of flashback and nightmare.

(4) There was no previous record on the plaintiff’s complaints of hearing voices from a female which was first raised in the examination.

(5) In cognitive tests in the Mental State Examination conducted by the experts, the plaintiff’s orientation to time was impaired.  She gave “approximate answers” which was a sign suggestive of malingering.

(6) On test of short term memory by recall of three items given, the plaintiff could recall none out of the three items given few minutes earlier suggesting the impression that her short term memory was severely impaired.  Such degree of memory impairment was only present in advanced stage of dementia.  The plaintiff did not suffer from any head injury.  Such severe deficit of short term memory could not be explained by any of her psychiatric diagnosis.

147.  Dr Singer had tried to offer some innocent explanations for the aforesaid matters raised by Mr Chow on the plaintiff’s exaggeration and malingering.  I have the benefits of also considering other evidence produced by the defendant on the various cross-country races and marathons participated by the plaintiff since October 2011 and the various photos up‑loaded by the plaintiff to her Facebook web page.  I do not accept the innocent explanations put forward by Dr Singer for the plaintiff.  I find that the plaintiff had exaggerated her symptoms to the extent of malingering.

148.  I accept that the plaintiff had suffered from psychiatric problem starting from February 2010 because of her back injuries and her urinary problem.  I accept Dr Chow’s view that these two matters contributed equally to the plaintiff’s psychiatric problem.

149.  I agree with Dr Chow’s observation that the treating doctors noted that the plaintiff was not depressed after August 2010 and until March 2012.  This is consistent with the plaintiff picking up her running hobby again in 2010 and took part in the “6^th CareAction Cup” in Macau in October 2011, the “Oxfam Trailwalker 2011” in November 2011 and the “10^th CareAction Cup” in Hong Kong in December 2011.  These activities helped to take the plaintiff out of her psychiatric problem.

150.  Dr Chow commented that (p 415):

“... Psychiatric record of Madam Yu shows that she has complaint of depressive symptoms and has probably still suffered from subjective residual mild depressive and anxiety symptoms but objective mental state examinations by her attending psychiatrist did not document presence of descriptions of “depressed, on low side, lowish, a bit low” indicative of any degree of depressed mood on all subsequent psychiatric visits after 29^th May 2012 when her mood was described to be just “a bit low” probably due to separation with her boyfriend.  In the absence of depressed mood in all objective mental state examinations after the visit on 29^th May 2012 (when her mood was described to be just “a bit Low”), Major Depressive Disorder even if present has been largely in remission.  The mere presence of residual subjective complaints of depressive symptoms makes the diagnosis of Major Depressive Disorder unlikely.”

151.  The plaintiff’s mood was “low” again in March 2012, not because of her back injury which I found no longer troubling her by 2012 but because of her urinary problem which was unrelated to the Incident and her separation with her boyfriend in February 2012.  The medical notes of PMH dated 28 March 2012 recorded the plaintiff as tearful when talking about separation with her boyfriend (p 918).  The defendant is not answerable for this second period of depression of the plaintiff which in any event had been largely in remission after May 2012.  This view of Dr Chow is supported by the plaintiff participating in the “13^th Raleigh Challenge‑Wilson Trail” and the Macau “7^th CareAction Cup” in October 2012 the “Oxfam Trailwalker 2012” in November 2012.  She took part in the “13^th Raleigh Challenge‑Wilson Trail” and the “Oxfam Trailwalker 2012” not by herself but as a team member of teams of the Church.  Picking up her most favourite hobby with peer support had certainly assisted the plaintiff getting out from her second period of depression.

152.  Both experts agreed that the plaintiff could return to her pre-accident employment albeit Dr Singer was of the view that this could only be after the plaintiff underwent the treatment recommended by him.  Dr Singer recommended an intensive course of 25 sessions of treatment every fortnight with medication.  Dr Chow believed that the plaintiff had achieved her maximal medical improvement from a psychiatric perspective.  He suggested a continuation of treatment on a monthly basis for a period of six months.  After considering all the evidence, I am of the view the psychiatric problem caused by the Incident to the plaintiff no longer subsisted.  If the plaintiff requires treatment for psychiatric problems caused by other matters, it does not concern the defendant or this assessment.

ASSESSMENT

153.  Bearing the above in mind, I assess below the various heads of damages claimed by the plaintiff.

PSLA

154.  The plaintiff claimed $300,000.00 under this head.  In the RSOD, the plaintiff pleaded in para 40 that:

“As a result of the injuries sustained in the Accident, the Plaintiff stays at home and does not like going out. She also lost interests in her hobbies and has suffered inconvenience in her daily activities and loss of amenities.”

155.  I accept that before the Incident the plaintiff was a healthy person and that she had fully recovered from her injury sustained in the 2008 Event.

156.  The plaintiff sustained a soft tissue injury which had by and large been resolved by 2010 when she started training on hills as confirmed by her in her aforesaid interview with Sportstunes.  The Incident did not lead to the plaintiff losing interest in her running hobby or losing her social life.  She continued to enjoy running not only by herself but also with her friends from the Church as a team.  The plaintiff also competed in the “10^th CareAction Cup” and the “12^th CareAction Cup” in Hong Kong as a member of “Lok Wah Long Distance Running Club” (樂華長跑會) (pp 570 and 751)  The photos posted by the plaintiff at her Facebook also showed that she was enjoying companions of her friends in Hong Kong and in her various overseas trips.

157.  I agree with Mr Ramanathan that this was a relatively soft impact injury by a co‑worker pushing a trolley cart.  It was not the same as being hit by a moving vehicle travelling at speed.  Both orthopaedics experts agreed that such soft tissue injury should recover with conservative treatment within a short time.

158.  Both orthopaedics experts agreed that the urinary problem was unlikely to be caused by the Incident.  Both urological experts were also of the view that the plaintiff’s urinary problem was due to unknown etiology.  I find that the plaintiff’s urinary problem was unrelated to the Incident.

159.  I accept Dr Chow’s opinion that the psychiatric problem of the plaintiff arose in February 2010 was partly due to the urinary issue and partly due to her back pain.  Both issues contributed equally to the plaintiff’s psychiatric problem from April to August 2010.  I have found that the recurring of the plaintiff’s psychiatric problem in 2012 was unrelated to the Incident.

160.  The Plaintiff claimed $300,000.00 under this head in the RSOD.  Mr. Ramanathan submitted that the award should at most be $100,000.00.

161.  Mr. Ramanathan cited the following cases to support his contention.

162.  In Chan Chun Keung v Greenvoll Limited trading as Conrad Hong Kong (HCPI 275/2005, unrep., 20 December 2005, Deputy Judge Carlson), the court awarded $180,000.00 as PSLA for a soft tissue injury as a result of fall on the buttock.  The injury exacerbated a pre‑existing weakness caused by the natural aging process.  The injury did cause the claimant certain degree of psychological problems leading to depression.  In making the aforesaid assessment, the learned Judge had factored into the sum awarded a very real element of exaggeration of symptoms.

163.  In So Loy Hing v Kowloon Motorbus Company Limited (HCPI 910/2011, unrep., 8 August 2014, Master A Ho), the court awarded $130,000.00 as PSLA for lower back contusion injury.  The claimant complained of urinary incontinence for the first time some 18 months after the accident but claimed that he in fact had the problem since 3 months after the accident.  The court did not accept that the claimant had urinary incontinence and found that even if the claimant did have urinary incontinence, it had nothing to do with the accident.

164.  In ChuSiuLong v CheungHoYin & Another (DCPI 580/2011, unrep., 7 May 2013, Deputy Judge Kent Yee), the claimant was found to have sustained a contusion injury of back when she fell at work.  No bony or neurological damage was found.  The claimant also complained of psychiatric conditions/suicidal ideas and incomplete emptying/post void urinary incontinence.  No medical evidence was adduced before the court to prove the casual link between the accident and the alleged urological and psychiatric problems. The court found the claimant to be a witness prone to exaggeration and found no causative relationship between the accident and the psychological/urological issues of the claimant.  The court awarded to the claimant $100,000.00 as PSLA

165.  Mr. Ramanathan also referred me to Yip Piu v Chung Kam Fei & Anr (HCPI 1168/1999, unrep., 27 November 2000, Cheung J) and Wong Chiu Wa v Ng Yuk Chun (HCPI 258/1999, unrep., 16 November 2011, Master de Souza).  In the former case the court awarded $100,000.00 as PSLA to “a 26 year old young man who had exaggerated his complaint” for a minor head injuries and dorsal back pain.  In the latter case, the court awarded $30,000.00 as PSLA to the claimant whom the court found was a malingerer in a claim following a “very trivial accident” when the plaintiff “received no more than a mild bump on the back that had been properly and adequately treated with analgesics.”

166.  Mr. Ramanathan submitted that the evidence clearly indicated that the plaintiff was a malingerer who had deliberately set out to feign and/or grossly exaggerate her symptoms and disabilities.  If the medical experts were made aware of the physical activities of the plaintiff since 2010, they would not have as benign in their assessment of her degree of impairment or extent of her residual disabilities.  Mr. Ramanathan submitted that the appropriate award for PSLA to the plaintiff should not exceed $100,000.00.

167.  Having regard to the aforesaid cases, I am of the view that the plaintiff’s case bears some similarities to the Chan Chun Keung case.  I bear in mind that no two cases can ever be the same.  I assess the damages of the plaintiff under this head at $150,000.00.

PRE‑TRIAL LOSS OF EARNINGS AND MPF

168.  The Plaintiff had been granted sick leave for 1,109 days.

169.  Dr Lam was of the view that the proper sick leave should be 3 months.  Dr Chow considered that a sick leave period for 3 to 6 months was appropriate in this case.  Mr. Ramanathan proposed to allow 6 months sick leave to the plaintiff.

170.  Taking into account contribution of the injuries sustained by the plaintiff at the Incident to her psychiatric problem and that the plaintiff had started running on hills again in 2010, I agree that reasonable sick leave for the plaintiff to recover from her injuries sustained in the Incident and the consequential psychiatric problem would be 6 months.

171.  The plaintiff was an hourly rated worker at the time of the Incident.  She earned $27.00 per hour.  She claimed that she worked on average 26 days per month and 10 hours per day.  Her average monthly earnings in the 12 months immediately before the Incident was $6,767.00.  The defendant provided one meal per day to her.  The plaintiff estimated the value of such meal at $30.00 per meal, ie $780.00 per month ($30.00 x 26 days).  The plaintiff claimed lost of pre‑trial earnings in the sum of $7,547.00 per month.  The plaintiff also claimed loss of MPF contribution which the defendant should have made to her MPF account.

172.  The defendant did not dispute the aforesaid monthly earnings claimed by the plaintiff.  In such case, the amount of pre‑trial loss of earnings of the plaintiff should be $47,312.10 (ie [$6,767.00 x105% + $780.00] x 6).  I assessed the plaintiff’s loss under this head at $47,312.10.

FUTURE LOSS OF EARNINGS

173.  As I have found that the plaintiff should be able to return to her pre-Incident work after 6 months if she so wished, the plaintiff suffers no future loss of earnings.

174.  The plaintiff remained unemployed after the aforesaid 6 months’ period not because she had not been recovered from the injuries but because she did not bother to find a job and put all her efforts to pursue her interest in those challenging cross-country races and marathons.  No damages under this head will be awarded.

LOSS OF CONGENIAL EMPLOYMENT AND OF EARNING CAPACITY

175.  As pointed out by Suffiad J in Chan Yiu Ping v Mok Yuk Kwong and others (unrep., HCPI 92/1998, 3 July 2000), an award for loss of congenial employment might be made when the claimant had had to give up a job which he enjoyed and which gave him satisfaction and/or status.  I have found that the plaintiff was able to return to her pre-Incident job, the plaintiff does not suffer loss of congenial employment.

176.  Loss of earning capacity is claimed on the basis that there is a risk of the plaintiff losing his employment some time in the future, by virtue of her injury and thereby being at a disadvantage in the labour market, and having difficulty in getting further employment.  Dr Lam had opined that the plaintiff might have some residual back symptoms upon prolonged working but the overall adverse effect should be very mild.  Dr Lam did not know that the plaintiff had run more than 280 km in 120 hours in the TDG.  Dr Lam did not have the full picture of the plaintiff’s recovery in her strength.  I am of the view that the injuries sustained by the plaintiff in the Incident did not leave residual adverse effect on her which may disadvantage her in the labour market.

177.  In view of my above findings as to the recovery of the plaintiff and her ability to return to her pre-Incident work, no award under these heads is appropriate.

COSTS OF FUTURE MEDICAL TREATMENT

178.  As both orthopaedics experts were of the view that the plaintiff had attained maximal medical improvement, no further medical treatment was required or recommended from the orthopaedics perspective.

179.  The plaintiff’s claim for future medical treatment is to deal with her latest psychiatric issues which I have found not caused by the Incident.  My finding is that the previous psychiatric issues caused partly by the injuries sustained in the Incident had by large been in remission by the end of 2010.  The defendant shall not be liable for such future medical expenses.  No award under this head is appropriate.

SPECIAL DAMAGES

180.  The plaintiff claimed $121,330.00 as special damages.  They included medical expenses ($12,000.00), costs for catheters ($63,000.00), travelling expenses ($4,000.00), vitamin ($3,500.00), tonic food ($37,380.00) and hot blanket ($1,450).

181.  The plaintiff’s urinary problem was unrelated to the Incident.  The need for and the use of catheters were not caused by the Incident.  The costs for catheters are not allowed.

182.  The plaintiff is entitled to medical and travelling expenses related to the orthopaedics injury and also part of the medical and travelling expenses related to the psychiatric issues.

183.  The plaintiff had provided payment records for medical expenses charged by PMH until June 2012 in the sum of $7,130.00 (p 528).  Other than charges by the Surgery Department in the sum of $1,000.00 which were for the plaintiff’s urinary problem, other charges were related to the plaintiff’s orthopaedics problem.  Although I have found that the plaintiff should be able to resume work after 6 months of sick leave, I accept that the plaintiff would still need to receive follow-up treatment after these 6 months to deal with the residuary symptoms caused by the injuries sustained in the Incident.  I accept that the aforesaid medical expenses related to orthopaedics issues incurred up to June 2012 were caused by the Incident and reasonable.  I allow the sum of $6,130.00 (ie $7,130 - $1,000).

184.  The plaintiff provided statement of account of CPH for the period from April 2010 to December 2013 (pp 522‑526) of which $840.00 was incurred in 2010.  I assess that the defendant is liable for 50% of such medical expenses.  I allow $420.00 to the plaintiff.

185.  As I have found that the urinary problem and the psychiatric problem of the plaintiff after 2010 were not caused by the Incident, the defendant is not answerable for expenses incurred by the plaintiff for treating her urological problem and treating her psychiatric problem after 2010.

186.  I do not allow the plaintiff’s claim for medical expenses to deal with her urinary problem or psychiatric/psychological problem after 2010.

187.  I allow the plaintiff’s medical expenses at $6,550.00 in total.

188.  The plaintiff’s claim for travelling expenses is not supported by evidence.  The plaintiff produced no receipts for her such claim.  However, as the plaintiff had to attend follow‑ups to address her orthopaedics and psychiatric conditions answerable by the defendant, I shall allow a reasonable amount for her travelling expenses.  According to the attendance records produced at p 528 of the hearing bundles, the plaintiff had to attend quite a number of follow‑up treatments.  I assess that reasonable travelling expenses in the sum of $3,000.00 shall be allowed to the plaintiff.

189.  The plaintiff’s claims for costs of vitamin, tonic food and hot blanket were not supported by documentary evidence.  The plaintiff stated in her witness statement that she had to use hot blanket to relieve her back pain.  No receipt was produced for these expenses.  Nevertheless, I shall allow a reasonable sum of $2,000.00 to the plaintiff to cover her expenses for purchasing the hot blanket, vitamin and other foods which would help her to relieve her pain or psychiatric symptoms or to recover from the back injuries or depression caused by the Incident.

190.  In the premises, I award $11,550.00 as special damages to the plaintiff.

SUMMARY OF MONETARY AWARD

191.  I assess the damages payable by the Defendants to the Plaintiff in this Action at $208,862.10.  Particulars are as follows:

(1)	PLSA	$150,000.00
(2)	Pre‑trial loss of earnings	$47,312.10
(3)	Special damages	$11,550.00

OTHER MATTERS AND COSTS

192.  Mr. Ramanathan submitted that this was a case of malingering and not an unconscious exaggeration by the plaintiff.  I agree.  He referred me to the following comments made by Moses LJ in South Wales Fires and Rescue Service v Smith [2011] EWHC 1749 (Admin) which was endorse by Lord Clarke in Summers v Fairclough Homes Ltd [2012] 1 WLR 2004:

“2. For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation.

3. They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims, when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not.

4. Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damages by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability or in relation to claims for compensation as a result of liability.

5. Those who make such false claims if caught should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice.

6. The public and advisors must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment, which will have the knock-on effect that the lives of those tempted to behave in that way, of both themselves and their families, are likely to be ruined.

7. But the prevalence of such temptation and those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice.”

193.  This is a case which warrants the law enforcement authorities to investigate further.  From the hearing bundles, I note that the defendant had previously reported this matter to the Police (pp 98‑182).  I shall leave it to the Police to do their investigation.

194.  The Plaintiff had received Employees’ Compensation payment (“EC Payment”) in the sum of $322,754.52.  The amount of EC Payment exceeds the amount of damages awarded to the plaintiff under this judgment.  In such case, no further damages is payable by the defendant to the plaintiff in this action.

195.  As the plaintiff has failed to obtain any further damages from the defendant in this action, the plaintiff in effect fails in this assessment exercise and shall bear the costs for this assessment exercise.  I am of the view that this is an appropriate case to order costs on indemnity basis against the plaintiff in the circumstances of this case.  However, as the plaintiff was legally aided until 31 March 2015, costs incurred prior to the discharge of the legal aid certificate will have to be borne by the public fund.  There is no reason why the taxpayers shall be answerable to the plaintiff’s misconduct.  In such case, I only order indemnity costs after 31 March 2015.

196.  I make a costs order nisi against the plaintiff in favour of the defendant for the assessment of damages proceedings to be taxed if not agreed on party‑and‑party basis up to 31 March 2015 and thereafter on indemnity basis.

197.  The above costs order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary the same within this 14 days period.